1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, Case No. 1:22-cv-00236-DAD-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915 (g) AND/OR DISMISS 14 M. STANE, ET. AL., ACTION WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE 15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16 ORDER TO ASSIGN A DISTRICT JUDGE 17 (Doc. No. 13) 18 19 Plaintiff Rogelio May Ruiz, a prisoner incarcerated at California State Prison, Corcoran, 20 initiated this action by filing a pro se prisoner civil rights complaint under 42 U.S.C. § 1983 on 21 February 22, 2022. (Doc. No. 1, “Complaint”). Plaintiff seeks to proceed in this action in forma 22 pauperis. (Doc. No. 13, IFP). For the reasons discussed below, the undersigned recommends the 23 district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has had at 24 least three actions or appeals that constitute strikes, and the Complaint does not establish that 25 Plaintiff meets the imminent danger exception. Alternatively, or in addition to, the undersigned 26 recommends the district court dismiss this action due to Plaintiff’s failure to timely file a first 27 amended complaint in English as directed in the Court’s May 4, 2022 Order. (Doc. No. 17). 28 //// 1 BACKGROUND AND FACTS 2 Plaintiff initiated this action by filing a § 1983 complaint in the Sacramento Division of 3 this Court on February 22, 2022. (Doc. No. 1). On February 25, 2022, the case was transferred 4 to this Division. (Doc. No. 4). Because Plaintiff did not accompany his Complaint with the 5 requisite filing fee or an application to proceed in forma pauperis, on February 28, 2022, the 6 Court directed him to do so within 30 days of receipt of the Court’s Order. (Doc. No. 6). The 7 February 28, 2022 Order warned Plaintiff that if he “fails to timely comply with this order, the 8 undersigned will recommend the Court dismiss this case for Plaintiff’s failure to comply with a 9 court order and/or prosecute this action.” (Id.). 10 After Plaintiff failed to timely file an IFP or pay the filing fee, the undersigned issued 11 amended findings and recommendations to the district court on April 14, 2022 recommending 12 dismissal of this action without prejudice due to Plaintiff’s failure to comply with the Court’s 13 February 28, 2022 Order and/or failure to prosecute providing Plaintiff 14 days to file any 14 objections.1 (Doc. Nos. 9, 10). During the objection period, Plaintiff filed an IFP motion. (Doc. 15 Nos. 13, 16). On May 4, 2022, the undersigned recalled the amended findings and 16 recommendations, struck the Complaint to the extent it was in Spanish and directed Plaintiff to 17 file an Amended Complaint in English. (Doc. No. 17). In its May 4, 2022 Order noting that 18 Plaintiff’s Complaint was written entirely in Spanish, the Court noted that Plaintiff had in 19 previous cases been warned that filings in federal court must be in the English language. (Id. at 20 2). Plaintiff was provided 30 days from receipt of May 4, 2022 Order to file an Amended 21 Complaint in English. (Id.at 2-3). The May 4, 2022 Order further warned Plaintiff that failure to 22 comply with the order would result in the recommendation that this case be dismissed for failure 23 to comply with a court order and/or failure to prosecute the action. (Id. at 4). On May 31, 2022, 24 the Court granted Plaintiff a 30 day extension of time to file an Amended Complaint in English. 25 (Doc. Nos. 19, 20). As of the date on these Findings and Recommendations, despite being 26 provided an enlargement of time, Plaintiff has not filed an Amended Complaint in English and 27 1 The Amended Findings and Recommendations clarified a 14-day objection deadline, instead of a 30-day 28 objection period, but was otherwise identical to the initial Findings and Recommendations. 1 the time to do so has passed. 2 APPLICABLE THREE STRIKE LAW 3 The “Three Strikes Rule” states: 4 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 5 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 6 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 7 physical injury. 8 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was 9 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 10 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 11 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 12 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 13 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 14 2007). 15 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning 16 the order dismissing the case must have been docketed before plaintiff initiated the current case. 17 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 18 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the 19 action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed 20 for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. 21 Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count 22 as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts 23 as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to 24 state a claim to count was with or without prejudice, as both count as a strike under § 1915(g). 25 Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint 26 requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis 27 Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 28 1 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without 2 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner 3 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint. 4 Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger 5 exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial 6 allegations” liberally to determine whether the allegations of physical injury are plausible. 7 Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). 8 In order to avail oneself of this narrow exception, “the PLRA requires a nexus between 9 the alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray 10 v. Lara, No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, Case No. 1:22-cv-00236-DAD-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915 (g) AND/OR DISMISS 14 M. STANE, ET. AL., ACTION WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE 15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16 ORDER TO ASSIGN A DISTRICT JUDGE 17 (Doc. No. 13) 18 19 Plaintiff Rogelio May Ruiz, a prisoner incarcerated at California State Prison, Corcoran, 20 initiated this action by filing a pro se prisoner civil rights complaint under 42 U.S.C. § 1983 on 21 February 22, 2022. (Doc. No. 1, “Complaint”). Plaintiff seeks to proceed in this action in forma 22 pauperis. (Doc. No. 13, IFP). For the reasons discussed below, the undersigned recommends the 23 district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has had at 24 least three actions or appeals that constitute strikes, and the Complaint does not establish that 25 Plaintiff meets the imminent danger exception. Alternatively, or in addition to, the undersigned 26 recommends the district court dismiss this action due to Plaintiff’s failure to timely file a first 27 amended complaint in English as directed in the Court’s May 4, 2022 Order. (Doc. No. 17). 28 //// 1 BACKGROUND AND FACTS 2 Plaintiff initiated this action by filing a § 1983 complaint in the Sacramento Division of 3 this Court on February 22, 2022. (Doc. No. 1). On February 25, 2022, the case was transferred 4 to this Division. (Doc. No. 4). Because Plaintiff did not accompany his Complaint with the 5 requisite filing fee or an application to proceed in forma pauperis, on February 28, 2022, the 6 Court directed him to do so within 30 days of receipt of the Court’s Order. (Doc. No. 6). The 7 February 28, 2022 Order warned Plaintiff that if he “fails to timely comply with this order, the 8 undersigned will recommend the Court dismiss this case for Plaintiff’s failure to comply with a 9 court order and/or prosecute this action.” (Id.). 10 After Plaintiff failed to timely file an IFP or pay the filing fee, the undersigned issued 11 amended findings and recommendations to the district court on April 14, 2022 recommending 12 dismissal of this action without prejudice due to Plaintiff’s failure to comply with the Court’s 13 February 28, 2022 Order and/or failure to prosecute providing Plaintiff 14 days to file any 14 objections.1 (Doc. Nos. 9, 10). During the objection period, Plaintiff filed an IFP motion. (Doc. 15 Nos. 13, 16). On May 4, 2022, the undersigned recalled the amended findings and 16 recommendations, struck the Complaint to the extent it was in Spanish and directed Plaintiff to 17 file an Amended Complaint in English. (Doc. No. 17). In its May 4, 2022 Order noting that 18 Plaintiff’s Complaint was written entirely in Spanish, the Court noted that Plaintiff had in 19 previous cases been warned that filings in federal court must be in the English language. (Id. at 20 2). Plaintiff was provided 30 days from receipt of May 4, 2022 Order to file an Amended 21 Complaint in English. (Id.at 2-3). The May 4, 2022 Order further warned Plaintiff that failure to 22 comply with the order would result in the recommendation that this case be dismissed for failure 23 to comply with a court order and/or failure to prosecute the action. (Id. at 4). On May 31, 2022, 24 the Court granted Plaintiff a 30 day extension of time to file an Amended Complaint in English. 25 (Doc. Nos. 19, 20). As of the date on these Findings and Recommendations, despite being 26 provided an enlargement of time, Plaintiff has not filed an Amended Complaint in English and 27 1 The Amended Findings and Recommendations clarified a 14-day objection deadline, instead of a 30-day 28 objection period, but was otherwise identical to the initial Findings and Recommendations. 1 the time to do so has passed. 2 APPLICABLE THREE STRIKE LAW 3 The “Three Strikes Rule” states: 4 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 5 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 6 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 7 physical injury. 8 28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was 9 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 10 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 11 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 12 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 13 or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 14 2007). 15 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning 16 the order dismissing the case must have been docketed before plaintiff initiated the current case. 17 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, 18 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the 19 action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed 20 for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. 21 Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count 22 as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts 23 as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to 24 state a claim to count was with or without prejudice, as both count as a strike under § 1915(g). 25 Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint 26 requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis 27 Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 28 1 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without 2 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner 3 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint. 4 Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger 5 exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial 6 allegations” liberally to determine whether the allegations of physical injury are plausible. 7 Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). 8 In order to avail oneself of this narrow exception, “the PLRA requires a nexus between 9 the alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray 10 v. Lara, No. 19-17093, ___ F. 4th ___, 2022 WL 1073607, at *6 (9th Cir. Apr. 11, 2022) 11 (adopting nexus test). “In deciding whether such a nexus exists, we will consider (1) whether the 12 imminent danger of serious physical injury that a three-strikes litigant alleges is fairly 13 traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial 14 outcome would redress that injury.” Id. at *7 (adopting test as articulated by Second Circuit, 15 citation omitted). The three-strikes litigant must meet both requirements of the nexus test to 16 proceed. Id. 17 Assertions of imminent danger may be rejected as overly speculative, fanciful, or 18 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly 19 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 20 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine 21 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. 22 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a 23 plaintiff at some earlier times are immaterial, as are any subsequent conditions. Andrews, 493 24 F.3d at 1053; Blackman v. Mjening, 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 25 (E.D. Cal. Oct. 4, 2016). 26 Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. § 27 1915(g), some courts have found that the proper procedure is to dismiss the case without 28 prejudice to re-filing the action upon pre-payment of fees at the time the action is refiled. 1 Hardney v. Hampton, No. 2:20-cv-01587-WBS-DMC-P, 2021 WL 4896034, at *4 (E.D. Cal. 2 Oct. 20, 2021), report and recommendation adopted, No. 2:20-cv-01587-WBS-DMC-P, 2021 3 WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 4 2002); Campbell v. Vance, No. CIV S-05-1163 RRB, 2005 WL 3288400, at *1 (E.D. Cal. Nov. 5 30, 2005). Other courts have first afforded the plaintiff an opportunity to pay the filing fee 6 before dismissing the case. See Gorby v. Internal Revenue Service, Fresno, Case No. 1:21-cv- 7 320-NONE-HBK, 2021 WL 1339146, report and recommendation adopted in part and rejected 8 in part, 2021 WL 2227810 (E.D. Cal. June 2, 2021)(rejected immediate dismissal, instead 9 permitting 30 days to pay filing fee, and if not, then requiring dismissal); Trujillo Cruz v. White, 10 No. 2:19-cv-1304-KJM-DMC, 2019 WL 4917192 (Oct. 4, 2019), report and recommendation 11 adopted in part and rejected in part, Trujillo-Cruz v. White, 2020 WL 1234201 (E.D. Cal. March 12 13, 2021)(rejected immediate dismissal, instead permitting 30 days to pay filing fee, and if not 13 then requiring dismissal). 14 The preceding law must be taken in the context of congressional intent when enacting the 15 Prison Litigation Reform Act. As the United States Supreme Court noted in Lomax, “[t]he point 16 of the PLRA . . . was to cabin not only abusive but also simply meritless prisoner suits.” Lomax, 17 140 S.Ct. at 1726. And the three strikes provision, in particular, was aimed “to disincentivize 18 frivolous prisoner litigation.” Hoffman v. Pulido, 928 F.3d 1147, 1148-49 (9th Cir. 2019). 19 ANALYSIS 20 A. Plaintiff has three or more qualifying strikes 21 A review of the Pacer Database reveals Plaintiff has filed at least 49 civil actions or 22 appeals in a court of the United States. The Court identifies the following cases, although not 23 exhaustive, which are properly deemed qualifying § 1915(g) strikes, entered before Plaintiff 24 commenced the instant action: 25 26 Date of Order Case Style Disposition Ruiz v. McGuire, Case No. Order dismissing complaint 27 May 9, 2016 3:16-cv-03880-AJB-BLM for failure to state a claim and 28 (S.D. Cal. 2016) failure to comply with the 1 court’s order directing plaintiff file an amended 2 complaint. This dismissal for 3 qualifies as a strike under Harris v. Mangum, 863 F.3d 4 1133, 1143 (9th Cir. 2017) (“Accordingly, we hold that 5 when (1) a district court dismisses a complaint on the 6 ground that it fails to state a 7 claim, (2) the court grants leave to amend, and (3) the 8 plaintiff then fails to file an amended complaint, the 9 dismissal counts as a strike under § 1915(g).”). 10 Ruiz v. Curry, Case No. Order adopting findings and May 30, 2018 11 1:17-cv-1454-DAD-SAB recommendations to dismiss (E.D. Cal. 2017) complaint for failure to state a 12 claim. Ruiz v. Curry, Case No. 19- Order dismissing appeal as 13 November 22, 2019 16456 (9th Cir. 2019) frivolous under 28 U.S.C. § 1915(e)(2) and denying 14 motion to proceed to proceed 15 in forma pauperis on appeal . 16 At least one other judge in this Court has previously found Plaintiff has accrued at least 17 three strikes and is subject to § 1915(g)’s bar absent a showing of the imminent danger exception. 18 See Ruiz v. Woodfill, Case No. 2:20-cv-0205-KJM-AC (E.D. Cal. 2020). As evidenced above, 19 Plaintiff has had three or more qualifying strikes for purposes of § 1915(g). 20 B. The Imminent Danger Exception Does Not Apply 21 Because Plaintiff has three-qualifying strikes, he may not proceed IFP unless the 22 Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical 23 injury as of the date the Complaint is filed. Because the Complaint was written primarily in 24 Spanish, the undersigned requested the Court’s staff interpreter to conduct an informal sight 25 translation of the document. Liberally construing the Complaint, Plaintiff’s allegations fail to 26 meet § 1915(g)’s imminent physical danger exception. 27 The gravamen of the Complaint concerns an excessive use of force incident that occurred 28 on June 3, 2021. (Doc. No. 1 at 3-10). Plaintiff alleges that on this date he was subjected to 1 excessive force, issued a falsified RVR related to the incident, subjected to racial discrimination 2 because he was not provided an interpreter at the correctional institution, and his cane was 3 destroyed. (Id.). The allegations, however, do not show Plaintiff was under imminent threat of 4 serious physical injury at the time he filed the Complaint because the incident giving rise to the 5 cause of action occurred on June 3, 2021, eight months before he filed the Complaint.2 (Id. at 3- 6 10). Furthermore, there are no allegations of a continuing violation or stated facts indicating an 7 ongoing pattern of physical harm. See Andrews, 493 F.3d at 1056-57 (“[A] prisoner who alleges 8 that prisoner official continued with a practice that has injured him or others similarly situated in 9 the past will satisfy the ‘ongoing danger’ standard…”). Consequently, because the Complaint 10 does not contain plausible allegations that Plaintiff “faced ‘imminent danger of serious physical 11 injury’ at the time of filing” of the complaint, he is not entitled to rely upon the exception to 12 proceed IFP. Andrews v. Cervantes, 493 F.3d 1047. 13 C. Dismissal for Plaintiff’s non-compliance under Rule 41(b) 14 Alternatively, because Plaintiff has failed to comply with the Court’s May 4, 2022 Order 15 directing that the file an Amended Complaint in English, the undersigned recommends a 16 dismissal for failure to prosecute and/or comply with a court order. Plaintiff is no stranger to the 17 federal courts. Plaintiff has initiated more than 42 federal civil actions in the federal courts. 18 Notably, the complaint filed in this case is written entirely in Spanish despite numerous court 19 orders admonishing Plaintiff that pleadings filed in federal court must be written in English. See 20 e.g. Ruiz v. Mobert, Case No. 1:17-cv-709-AWI-BAM (E.D. Cal. 2017)((Doc. No. 18) striking 21 the complaint and directing Plaintiff to file complaint written in English); Ruiz v. Curry, Case No. 22 1:17-cv-1454-DAD-SAB (E.D. Cal. 2017)((Doc. No. 11) directing Plaintiff to file an amended 23
24 2 As informally translated by the court’s interpreter, Plaintiff repeats the excessive use of force incident on each page of the Complaint, alleging correctional officials falsified an RVR blaming him for attacking 25 correctional officers and instead attacked him while he was restrained on the ground by delivering kicks to his head, face, and “testicular area.” (Doc. No. 1 at 3-5). Albeit paradoxical, Plaintiff alleges during the 26 excessive force incident a correctional official insulted him in English, but he didn’t understand, prompting the correctional officer to get frustrated. (Id. at 4). As a result of the excessive use of force 27 incident, Plaintiff states he suffered injuries including a broken molar, face/head lacerations, an inflamed right eye, and “inflamed testicles.” (Id. at 3-5). 28 1 complaint because the complaint was written in both English and Spanish); Ruiz v. Woodfill, Case 2 No. 2:19-cv-2118-MCE-KJN, 2021 WL 1060141, at *1-*2 (E.D. Cal. March 18, 2021)(collecting 3 cases advising Plaintiff to file pleadings in English and further providing documentation that 4 Plaintiff falsely alleged he cannot write or understand English); Ruiz v Sadler, Case No. 2:19-cv- 5 147EFBN (E.D. Cal. 2019)(same)); Ruiz v. Woodfill, Case No. 2:20-cv-205-KJM-AC, 2021 WL 6 606255, at *1 (E.D. Cal. Jan. 28, 2021)(reviewing motion for reconsideration and advising 7 Plaintiff must file pleadings in English). 8 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 9 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 10 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 11 (9th Cir. 2019) (citations omitted). Local Rule 110 similarly permits the court to impose 12 sanctions on a party who fails to comply with the court’s Rules or any order of court. 13 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 14 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 15 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the 16 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court 17 that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis 18 added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors 19 and independently reviewing the record because district court did not make finding as to each); 20 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 21 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 22 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff 23 did not amend caption to remove “et al” as the court directed and reiterating that an explicit 24 finding of each factor is not required by the district court). 25 The undersigned considers each of the above-stated factors and concludes dismissal is 26 warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to 27 be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 28 990-91 (9th Cir. 1999). Turning to the second factor, the Court’s need to efficiently manage its 1 docket cannot be overstated. This Court has “one of the heaviest caseloads in the nation,” and 2 due to unfilled judicial vacancies, which is further exacerbated by the Covid-19 pandemic, 3 operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing 4 Judicial Emergency in the Eastern District of California. The Court’s time is better spent on its 5 other matters than needlessly consumed managing a case with a recalcitrant litigant. 6 Indeed, “trial courts do not have time to waste on multiple failures by aspiring litigants to 7 follow the rules and requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th 8 Cir. 2002) (Trott, J., concurring in affirmance of district court’s involuntary dismissal with 9 prejudice of habeas petition where petitioner failed to timely respond to court order and noting 10 “the weight of the docket-managing factor depends upon the size and load of the docket, and 11 those in the best position to know what that is are our beleaguered trial judges.”). Delays 12 inevitably have the inherent risk that evidence will become stale or witnesses’ memories will fade 13 or be unavailable and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. 14 New York, 392 U.S. 40, 57 (1968). Finally, the instant dismissal is a dismissal without prejudice, 15 which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 16 After considering the factors set forth supra and binding case law, the undersigned 17 alternatively recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 18 110. 19 Accordingly, the Court RECOMMENDS: 20 1. The district court DENY Plaintiff’s motion to proceed in forma pauperis (Doc. 21 No. 2) under § 1915(g) due to his three-strike status and his failure to meet the imminent danger 22 exception and DISMISS the action without prejudice after affording Plaintiff an opportunity to 23 pay the filing fee. 24 2. Or, in the alternative, or in addition to the above, the district court DISMISS the 25 action due to Plaintiff’s failure to timely comply with the Court’s orders to file an Amended 26 Complaint in English and/or prosecute his action. 27 NOTICE TO PARTIES 28 These findings and recommendations will be submitted to the United States district judge 1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 2 | days after being served with these findings and recommendations, a party may file written 3 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Parties are advised that failure to file objections within the 5 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 6 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 Dated: _ July 15,2022 law □□ fareh Zacks 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE
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